GLEN S. FRICK v. SHARI J. FRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GLEN S. FRICK,

Plaintiff-Respondent,

v.

SHARI J. FRICK,

Defendant-Appellant.

December 2, 2016

Argued October 6, 2016 Decided

Before Judges Alvarez, Accurso, and Higbee.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1024-09.

Daniel K. Newman argued the cause for appellant.

Mitchell L. Mullen argued the cause for respondent (Mullen Law, LLC, attorneys; Mr. Mullen, of counsel and on the brief).

PER CURIAM

Plaintiff Glen S. Frick and defendant Shari J. Frick on September 21, 2009, entered into a property settlement agreement (PSA) that was incorporated into their divorce decree. The parties have two college-age children who principally reside with their mother. Since approximately four years after the divorce, defendant has lived with a man and his two children, one of whom is emancipated. Plaintiff filed a motion to terminate the ten-year limited duration alimony payable to defendant, and a hearing was conducted on August 20, 2014, September 2, 2014, and October 9, 2014. The judge terminated alimony, except from between September 2013 to September 2014, because he interpreted the 2014 amendments to N.J.S.A. 2A:34-23 to have retroactive effect. The statute, in n, states: "Alimony may be suspended or terminated if the payee cohabits with another person." We reverse for the entry of an order reinstating the alimony obligation payable by plaintiff.

The parties agree that during negotiations leading to the PSA, cohabitation was not discussed. The relevant language in the agreement reads

8. Term Alimony

A. The Husband shall pay limited duration term alimony to the Wife, commencing October 1, 2009, and continuing for a period of ten (10) years until September [30], 2019. The term alimony shall be in the amount of ONE THOUSAND, FOUR HUNDRED AND TWENTY-FIVE DOLLARS ($1,425.00) per week. Said alimony is based upon the Husband's approximate income of $260,000.00 per year, and the Wife's imputed income of approximately $25,000.00 per year. Said alimony shall be payable by way of wage execution through the County Support Probation Department, and Husband shall pay the full amount without deduction directly to the Wife until such time as an account is established.

B. The parties have agreed and intended that alimony shall irrevocably terminate on September [30], 2019, or upon the death of either party, or upon the remarriage of the Wife, whichever is sooner. With regard to said termination, the parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living, increases or decreases in their incomes, their loss or inability to secure employment; any prospective change of employment, the subsequent acquisition or loss of assets by either of them, the dissipation, whether negligent or not, of the assets received by each of them as and for equitable distribution in this matter, and any other event or events which may or do change the quality of their economic life and have agreed to the unconditional termination of the alimony as set forth herein.

C. The parties acknowledge that the rationale in the cases of Lepis v. Lepis and Crews v. Crews have been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a court of competent jurisdiction to modify the alimony/spousal support provisions of this Agreement. It is the intention of the parties hereto, that the rationale of the Lepis and Crews cases shall not apply to the extension of the alimony term as set forth herein, for they intend, and they acknowledge that the mutual waivers of alimony/spousal support beyond that period in this Agreement shall express their rights and obligations for now and for all time, despite substantial changes in their monetary circumstances at that time.

D. Both parties have been advised by their counsel of the legal ramifications of this alimony/spousal support waiver after the term described herein, and of the legal decisions concerning change of circumstances. Nevertheless, both parties expressly intend that neither party shall be liable to the other party for any alimony and/or spousal support payments (whether direct or indirect) in the future beyond the term specifically set forth herein.

Defendant testified that her cohabitant always deposited his salary, and she at times deposited her alimony, into a joint account. Nonetheless, both testified that each was responsible for his or her own expenses. The cohabitant further stated that he only bought food for the household for his children, and that the only expenses he had paid on defendant's behalf was a vacation to Florida to visit his parents and a vacation to the Caribbean. He bought the airplane tickets and paid for accommodations.

When the parties divorced, plaintiff earned $260,000 per year, and defendant's income was imputed at $25,000. At the hearing, plaintiff expressed some concern about the likelihood that his salary, which had increased since the PSA was signed, would continue at that level. His concern stemmed from the fact his employer had recently been acquired by another company. Defendant did not work outside the home when divorced, nor was she doing so at the time of the hearing. The limited duration alimony was scheduled to terminate on September 30, 2019.

The judge made no credibility findings. He stated only that "[t]he court relied on its discretion in evaluating the witnesses for their truthfulness, evasiveness and candor."

The judge found "that the cohabitant [] provided minimal economic assistance when balanced with the [d]efendant's economic needs and expenses." He therefore continued alimony for the year after the commencement of the cohabitation because defendant's financial status was not affected by the relationship and the amendments to N.J.S.A. 2A:34-23 did not go into effect until September 2014. He noted that "the PSA was silent as to cohabitation and how it would affect spousal support."

The judge terminated the obligation after the effective date, opining that "the clear language of the new alimony statute[]" applied and thus no further alimony payments were due. The judge agreed with plaintiff that the PSA language making Lepis1 and Crews2 inapplicable only limited defendant's ability to seek continuation of alimony payments beyond the ten-year term.

On appeal, defendant raises the following points of error

I. THE BROAD, INCLUSIVE, NON-RESTRICTIVE LANGUAGE OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT CONTEMPLATES THAT ALIMONY WITHIN THE PAYMENT PERIOD WAS TO BE TERMINATED ONLY UPON DEATH OF EITHER PARTY OR REMARRIAGE OF WIFE.

II. THERE IS NO GOVERNOR'S PROCLAMATION, LEGISLATIVE HISTORY OR LANGUAGE USED IN THE ALIMONY STATUTORY AMENDMENTS OF SEPTEMBER 10, 2014 THAT WOULD LEAD ONE TO CONCLUDE THE AMENDMENTS SHOULD BE GIVEN RETROSPECTIVE EFFECT.

III. CURRENT NEW JERSEY DECISIONAL LAW WITH RESPECT TO THE 2014 ALIMONY STATUTORY AMENDMENTS HAS UNANIMOUSLY HELD THAT THEY ARE PROSPECTIVE IN NATURE ONLY AND ARE NOT TO AFFECT MATTERS WHICH AROSE PREVIOUSLY.

IV. EVEN IF THE COURT WERE TO FIND THAT THE LEGISLATURE INTENDED THE CHANGES TO THE NEW JERSEY ALIMONY LAW TO APPLY RETROACTIVELY, ALIMONY SHOULD NOT BE SUSPENDED OR TERMINATED.

V. RETROACTIVE APPLICATION OF THE AMENDED ALIMONY STATUTE IS UNCONSTITUTIONAL AS IT IMPAIRS THE PARTIES' RIGHTS AND OBLIGATIONS UNDER A PRE-EXISTING CONTRACT AND INTERFERES WITH A CONSTITUTIONALLY-VESTED RIGHT.

The scope of our review of a family court's findings of fact is ordinarily limited. Cesare v. Cesare, 156 N.J. 394, 411 (1998). In this case, it is somewhat hampered by the judge's lack of clarity in the discretionary determinations he made regarding the witnesses' "truthfulness, evasiveness and candor." We necessarily assume he found defendant and the cohabitant credible from the decision he reached as he did not modify alimony for the year before the amendments took effect. But he only said he exercised his discretion in evaluating the witnesses. He did not articulate his conclusions after exercising that discretion.

A trial judge's credibility findings are binding where "supported by adequate, substantial, credible evidence." Id. at 411-12. Deference is given to the family court's findings because of its ability to observe the witnesses firsthand. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). A reviewing court will only disturb the findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice[.]" Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). After reviewing the record, nothing causes us to conclude that defendant and the cohabitant's testimony was not credible, giving us confidence that we have correctly interpreted the findings implied by the judge's decision to leave alimony intact prior to the statutory amendments.

In any event, a family judge's legal conclusions are reviewed de novo, and that is where we part company with the judge's decision. See D'Agostino v. Maldonado, 216 N.J. 168, 182-83 (2013) (citing Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1985)); Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015) ("[A] 'trial judge's legal conclusions, and the application of these conclusions to the facts, are subject to our plenary review.'" (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013))).

We address only two of the issues raised. The first is the construction of the PSA and the second is the retroactivity of the current version of the alimony statute.

I.

Insofar as the PSA, we disagree with the Family Part judge. We find cohabitation was waived as a change of circumstances triggering event. The language in the "Term Alimony" section of the PSA, Sections A, C, and D, focuses solely on protecting plaintiff from potential claims that might be made by defendant at the end of the ten-year limited duration alimony term.

But Section B stated in unqualified terms that the "alimony shall irrevocably terminate on September 3[0], 2019, or upon the death of either party, or upon the remarriage of the Wife, whichever is sooner. With regard to said termination, the parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them." [Emphasis added]. The paragraph also states the parties have considered "increases or decreases in their income." Admittedly, the parties agree that they did not discuss the effect of cohabitation before entering into the PSA. The actual language is all-inclusive, however.

Cohabitation is a foreseeable event. By its terms, the agreement excluded it as an event which would trigger early termination of this limited duration alimony. The parties outlined the events which would trigger early termination, and cohabitation was not one of them.

Based on the language of the PSA, the parties intended to specifically limit termination prior to September 30, 2019, only to death or remarriage. "It is not the function of the court to rewrite or revise an agreement when the intent of the parties is clear." Quinn v. Quinn, 225 N.J. 34, 45 (2016) (citation omitted). Moreover, "[w]hen a court alters an agreement in the absence of a compelling reason, the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court's preference for settlement of all, including marital, disputes." Id. at 55. Therefore, we conclude that the PSA excluded cohabitation as an event triggering the suspension of this limited duration alimony.

II.

If the PSA did not include cohabitation as an event that would trigger termination, we then turn to the question of whether the statutory amendments have retroactive effect. Prior to the 2014 amendments to N.J.S.A. 2A:34-23, the statute provided that alimony was subject to modification based on a showing of changed circumstances. Lepis, supra, 83 N.J. at 146. This included the economic effects of cohabitation. Id. at 151. The current version of the statute limits a court's authority, upon proof of cohabitation, to suspension or termination of the obligation. Spangenberg, supra, 442 N.J. Super. at 537.

We have previously held that post-judgment orders reducing alimony, but not terminating or suspending it, after a hearing at which cohabitation was established, withstood later passage of the amendments. Spangenberg, supra, 442 N.J. Super. at 539. As we said there, the bill adopting the alimony amendments "signal[ed] the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments." Id. at 538. The analysis is the same when considering a PSA, as opposed to a post-judgment order. Ibid. In other words, the Legislature recognized the necessity to enforce negotiated contracts such as this one.

In Quinn, the Court did not apply the amended statute to the parties' 2006 PSA. In a footnote, the Court observed

On September 10, 2014, the Legislature enacted N.J.S.A. 24:34-23, which provides that "[a]limony may be suspended or terminated if the payee cohabits with another person."" L. 2014, c. 42, 1. The Legislature clarified that this law "shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties." Id. 2. Because this law was enacted after the PSA was entered, it does not govern this case, and the terms of the PSA apply.

[Quinn, supra, 225 N.J. at 51 n.3.]

The parties entered into their PSA in 2009. The amendments did not take effect until 2014. Thus the Legislature and subsequent case law make clear that this 2009 PSA remains unaffected by passage of the law.

Reversed.

1 Lepis v. Lepis, 83 N.J. 139, 161 (1980) (holding that upon a showing of "changed circumstances," spousal support awards may be modified).

2 Crews v. Crews, 164 N.J. 11, 36 (2000) (stating that alimony may be modified due to a change in circumstances).